Ward v. State

• Decision Date: 19 February 1997
• Docket Number: No. 06-95-00189-CR,06-95-00189-CR
• Citation: 938 S.W.2d 525
• Parties: Brent Lee WARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 525

938 S.W.2d 525

Brent Lee WARD, Appellant, v. The STATE of Texas, Appellee.

No. 06-95-00189-CR.

Court of Appeals of Texas Texarkana.

Submitted Jan. 16, 1997.

Decided Jan. 17, 1997.

Rehearing Overruled Feb. 19, 1997.

Henry C. Paine, Jr., Denton, for appellant.

Lisa Tanner, Austin, for appellee.

Before CORNELIUS, C.J., and GRANT and ROSS, JJ.

OPINION

ROSS, Justice.

Brent Ward appeals from his conviction of committing aggravated perjury before a grand jury. After a trial, a jury found him guilty and assessed punishment at three years' imprisonment and a $5,000.00 fine.

Ward contends on appeal that his conviction should be reversed for the following reasons: 1) it violates his protection against double jeopardy; 2) the evidence is insufficient to support the verdict; 3) the allegedly perjurious statements were not material to the grand jury's investigation; 4) the State failed to inform him that he was a suspect in the case before he testified; and 5) the State failed to warn him of his right against self-incrimination before he testified.

The appellant's contentions are overruled, and the judgment is affirmed.

Background

Brent Ward was subpoenaed to testify before an Upshur County grand jury in connection with its investigation of the disappearance of Kelly Wilson. ¹ Ward is a cousin and friend of Chris Denton, Wilson's former boyfriend. Denton was considered a potential suspect, and it appears that Ward was considered a potential source of information about Wilson's disappearance.

Ward was questioned two separate times before the grand jury. The first time was on May 7, 1993, when he told the jurors, under oath, that he knew nothing about the disappearance of Kelly Wilson and that on the date of her disappearance, January 5, 1992, he had worked at his place of employment, Holly Lake Ranch, until about 4:00 p.m. The second time Ward appeared before the grand jury was on May 21, 1993, when he again testified, under oath, that on the date of Wilson's disappearance he had been at work until around 4:00 p.m. and that he knew nothing about what had happened to her.

The State brought two counts of aggravated perjury charges against Ward in one indictment. The first count alleges that on May 7, 1993, he lied to the grand jury when he stated under oath that he was at work at Holly Lake Ranch on the day of Kelly Wilson's disappearance on January 5, 1992. The second count alleges that on May 21, 1993, he lied to the grand jury when he testified under oath that he was at work on the day of Kelly Wilson's disappearance on January 5, 1992.

At the trial, both counts of the indictment were tried together and the State relied on the same evidence to prove that Ward was not at work on January 5, 1992. The trial jury acquitted Ward under Count One, but convicted him under Count Two.

I. Double Jeopardy Contentions

Ward first contends that his conviction under the second count of the indictment is barred by double jeopardy considerations. We begin with the Double Jeopardy Clause of the Fifth Amendment, which provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST. amend. V.

It protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 441, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487, 496 (1989); Ex parte Kopecky, 821 S.W.2d 957, 958 (Tex.Crim.App.1992); Coleman v. State, 918 S.W.2d 39, 42-43 (Tex.App.--Houston [1st Dist.] 1996, pet. granted).

Ward contends that the first analysis prohibits his later conviction for an offense for which he had been acquitted. His argument is based upon the premise that, since the allegedly perjurious statement was made to the grand jury on two separate occasions, an acquittal for the first occasion prohibits a later prosecution for making the same perjurious statement again to that same grand jury.

To determine whether jeopardy attached, the court must inquire whether each offense contains an element not contained in the other. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932). If a different element is present, double jeopardy does not attach. Id. However, if each element of the offense in the first indictment is identical to the offense in the second indictment, double jeopardy attaches and bars successive prosecutions. Id. ²

The essential elements relevant to a double jeopardy inquiry are those of the charging instrument, not of the penal statute itself. Although statutory elements will always make up part of the accusatory pleading, additional nonstatutory allegations are necessary in every case to specify the unique offense with which the defendant is charged. Parrish v. State, 869 S.W.2d 352, 354 (Tex.Crim.App.1994). The relevant factors to focus on in a charging instrument include the time and place of the offense, the identity of the defendant, the identity of the complainant, and the manner and means used in committing the offense. Id.

The basic concept of double jeopardy does not apply in this case because the "same offense" was not involved. The allegedly perjurious statement was made on two different dates. Thus, he was not prosecuted twice for the same offense.

The Fifth Amendment prohibition against double jeopardy also includes collateral estoppel, and that concept requires a somewhat different analysis. Ladner v. State, 780 S.W.2d 247, 250 (Tex.Crim.App.1989); Ex parte Daniel, 781 S.W.2d 412, 414 (Tex.App.--Houston [1st Dist.] 1989, pet. ref'd). Collateral estoppel is the principle that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties. Ashe v. Swenson, 397 U.S. 436, 443-45, 90 S.Ct. 1189, 1194-95, 25 L.Ed.2d 469, 475-76 (1970) (insufficient evidence to convict defendant of the robbery of one person at a poker table collaterally estopped state from trying the defendant for same offense against another person at the same poker table).

Ashe mandates two inquiries: First, what facts were necessarily determined in the first lawsuit? Second, has the prosecution in a subsequent trial tried to relitigate facts necessarily established against it in the first trial? Dedrick v. State, 623 S.W.2d 332, 336 (Tex.Crim.App. [Panel Op.] 1981).

This related concept does not apply to the present case because the Ashe doctrine of collateral estoppel only applies where there are two trials, and not where a single trial involving two counts is involved. Hite v. State, 650 S.W.2d 778, 784 n. 7 (Tex.Crim.App.1983).

As placed before this Court and argued by the appellant, this case instead is more accurately described as a case involving an inconsistent verdict. This concept is little-explored in Texas jurisprudence, but there is substantial federal guidance in this area. The Corpus Christi Court of Appeals directly addressed this issue in Ruiz v. State, 641 S.W.2d 364, 366 (Tex.App.--Corpus Christi 1982, no pet.). In Ruiz, the court acknowledged the lack of state authority on this question and applied the federal rule that "inconsistent verdicts do not require reversal." (Citing Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932)). "Where a multi-count verdict appears inconsistent, the appellate inquiry is limited to a determination of whether the evidence is legally sufficient to support the counts on which a conviction is returned. What the jury did with the remaining counts is immaterial." Ruiz, 641 S.W.2d at 366.

Since Ruiz, the Dunn decision has been revisited by the Supreme Court in United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). In Powell, the Court stated that the rationale behind this concept is based upon entirely different factors than those supporting res judicata. In short, these cases establish "the unreviewable power of a jury to return a verdict of not guilty for impermissible reasons." Id. at 63, 105 S.Ct. at 476, 83 L.Ed.2d at 467. If such inconsistent verdicts are reached, however, "[t]he most that can be said ... is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt." Id. at 63, 105 S.Ct. at 475, 83 L.Ed.2d at 468.

The Court concluded that since the state has no recourse in such a situation because of its inability to appeal, public policy provides that no double jeopardy protections are invoked. A sufficiency of the evidence review of the count upon which the defendant is found guilty is sufficient to safeguard the defendant. Id.; see Andrew Leipold, Rethinking Jury Nullification, 82 VA.L.REV. 253, 276-77 (1996); Janet R. Ferguson & Alison Kennamer, Criminal Law, 24 TEX. TECH L. REV . 533, 545-47 (1993); Jeffrey B. Keck & William Randell Johnson, Criminal Procedure: Trial and Appeal, 40 SW.L.J. 583, 644-45 (1986). Thus, even if an inconsistent verdict is shown by the jury's verdict in this case, no error has been shown, and our review of the sufficiency of the evidence below is sufficient to safeguard Ward on appeal.

Ward's contention of double jeopardy is overruled.

II. Insufficiency of the Evidence

Ward next contends that the evidence was insufficient to support the verdict because it did not establish that he had not worked on January 5, 1992. In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979), and Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991), and look to see whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable...